Friday, August 13, 2010

Last night Oracle announced that it filed a lawsuit in Northern California against Google, claiming that Android infringes seven Java patents (which Oracle acquired along with Sun in January) as well as some unspecified Java-related copyrights.

The document filed by Oracle with the United States District Court for the Northern District of California has been published by VentureBeat.

ZDNet thinks that this "may be the most gigantic patent battle ever seen in this industry."

Some aspects of this are unclear, so I believe this is mostly the time to ask the right questions, and time will provide the answers, probably sooner rather than later.

While there is serious doubt about the full compliance of many Android-based products with open-source rules, it appears to me that Oracle asserts the patents in question against components of Android that are open source. Even if some Android-based or Android-related products may include components that don't meet open-source criteria, I find it impossible to imagine that the patents Oracle tries to enforce here would be infringed only by closed-source components and not by Android's many open-source components.

Therefore, I consider this a patent attack on free software and open source.

In my recent posting on Microsoft's cooperative use of patents I explained at length why I'm much less concerned about patent holders who are willing to do license deals on fair, reasonable and non-discriminatory (FRAND) terms than about those who use patents for exclusionary strategic purposes (meaning they require companies to remove features from products or even entire products from the market). If companies only go to court because someone doesn't accept a reasonable license deal, then even I as an opponent of software patents can see the commercial logic and can't condemn such action in moral terms because it allows companies to stay in business.

I've read the document Oracle filed with the court, and Oracle's succinct press release. There isn't any indication that Oracle offered Google a license deal on FRAND terms.

That doesn't mean that Oracle didn't do it. However, in the four cases in which Microsoft started patent litigation, it always made it clear in its official statement that it previously tried to reach a license agreement. Since Oracle doesn't claim to have made a good-faith attempt to resolve the issue amicably, it's certainly possible (unless information to the contrary surfaces later) that this is a hostile, aggressive and destructive move on Oracle's part.

In the WebM context I have previously pointed out that Google must demonstrate its willingness and ability to protect those who adopt its open source technologies, such as Android and WebM.

It would be very disappointing to see Google settle its dispute with Oracle on a basis that would take care only of Google but not of the wider Android ecosystem, including but not limited to the makers of Android-based phones.

I have repeatedly criticized the "Open" Invention Network (OIN), an entity that claims to protect "Linux" against patent threats. I've always said that there's no evidence it has ever helped any company (the latest example is Salesforce, which apparently pays royalties to Microsoft for a variety of patents including some that read on Linux). And I've explained in detail that the OIN doesn't truly protect all of FOSS but only an arbitrarily defined list of program files.

Oracle's lawsuit against Google is the strongest evidence that my concerns about the Open Invention Network are well-founded. Both Oracle and Google are OIN licensees, so in theory there is a non-aggression pact in place between them, but everyone can see that Oracle sues Google anyway because the OIN's scope of protection is too narrow.

I'm not alone with those concerns. This ArsTechnica article also mentions the OIN's limitations.

In the European Union, both Google and Oracle are members of the "Open"Forum Europe (OFE), a lobby organization that claims to advocate open standards. It's not about open standards. It's all about open double standards. I explained that before.

However, Oracle's patent infringement suit against Google is also an aggression against the notion of open standards. Java should be an open standard, and according to Oracle-backed organizations such as the OFE and ECIS, such standards would have to be made available on a royalty-free basis.

In his initial thoughts on the Oracle-Google dispute, "Mr. Mono" Miguel de Icaza has made a number of good points. One of them is that Google would actually have been better off, from a patent point of view, with the Microsoft Community Promise for C#, the core .NET class libraries and the related virtual machine.

I recently explained why Richard Stallman, whom I really respect but with whom I sometimes disagree, was IMO wrong with his concerns about patents on C# and Mono. See, I told you so: there's no point in being too much focused on Microsoft in this context when other companies pose the real threats and problems. The Microsoft bogeyman can be a huge distraction from the actual issues.

Miguel de Icaza even suggests Google might now want to switch from Java to .NET and C#. There may be reasons for which it's not the most likely thing for Google to do, but anything is possible now in the wake of Oracle's patent infringement suit against Google. Indeed, Microsoft's C# is an open standard by any reasonable definition while Oracle proves once again that Java is not.

Concerning open double standards and open hypocrisy, it's very regrettable that the Free Software Foundation Europe and the FFII collaborate with the "Open"Forum Europe. The two most influential members of the OFE, IBM and Oracle, have both shown in recent months that they use patents against free software in order to prevent interoperability.

I know a thing or two about EU politics and I'm profoundly concerned that the FSFE and the FFII stand to lose some of their credibility by partnering with organizations that clearly defend corporate interests, not values. It ultimately raises questions about the nature of the motivation that drives the FSFE and the FFII, or its leaders. What they do in this context isn't genuinely NGO-like to say the least.

Some of you reading this may know that I opposed the MySQL part of Oracle's acquisition of Sun. I was also against them acquiring Java, but I kept quiet about that. What I did speak out on was the MySQL part of the deal because I couldn't see (and still can't see) how MySQL could ever be a competitive force that puts Oracle under pressure if Oracle owns and controls it to the greatest extent any company can ever control an open source product.

I worked with Michael 'Monty' Widenius, MySQL's creator and founder, in opposing MySQL's acquisition by Oracle. Among other things, I authored this position paper, which Monty's company filed with the European Commission and regulators in other jurisdictions. (However, I am not involved with Monty's appeal against the European Commission's decision to ultimately clear the merger.)

Most members of the FOSS community understood and supported our concerns. More than 40,000 signed up (in only about a month) on helpmysql.org to voice their opposition to the deal. But some well-known voices who claim to advocate FOSS interests supported Oracle (and even accused us of absurd things). And very importantly, Richard Stallman co-signed a letter asking the European Commission to block the merger.

It was part of Oracle's and Sun's communication strategy to tell community leaders that the deal was good in the community's interest because Sun owned so many patents that others (in some cases suggesting Microsoft although they never made a bid for Sun) might be able to use against free and open source software. They said that Oracle was a reasonable patent holder and wouldn't harm open source.

Yes, they said that. You can still read these claims. Carlo Piana, a lawyer affiliated with the FSF Europe, wrote about that when he explained why he joined Oracle's legal team. A website that always supports IBM's actions unconditionally (and IBM publicly supported the Oracle-Sun deal) parroted Carlo Piana's argument. And there was a lot of talk about it at community events and on various blogs.

It is worth noting that Eben Moglen of the Software Freedom Law Center (SFLC) also supported Oracle, including that he traveled to Europe to support their case at a European Commission hearing. He, too, claimed it was good for free software.

So where are those pro-Oracle FOSS advocates now? Will they come out unequivocally in support of Google and condemn Oracle's action? Will they admit that it was a bad idea to let Oracle acquire Sun in the first place? Will they concede that they were wrong when they said Oracle would be a good owner of those patents? Will the SFLC and the Public Patent Foundation now lend pro-bono legal support to Google in order to get those Java patents invalidated before they do more damage?

Or will they keep quiet due to a conflict of interests and only talk about a bogeyman and propose fake solutions such as the OIN in order to distract the community from the real problems?

Oracle's patent suit against Google raises many important questions, including the ones I just asked.

If you'd like to be updated on patent issues affecting free software and open source, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents.

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About Me

Florian Mueller used to be an award-winning intellectual property activist. His 30 years of software industry expertise span different market segments (games, education, productivity and infrastructure software), diverse business models, and technical and commercial areas of responsibility. In recent years, Florian advised a diversity of clients on the patent wars surrounding mobile devices, and on their economic and technical implications. (In order to avoid conflicts of interest, Florian does not hold or initiate transactions in any technology stocks or derivatives thereof, except that he is long AAPL.) He is now developing games for smartphones and tablet computers.